A Report on the Inaugural Northern Public Law Forum (2018)

Robert Greally is a Ph.D. Candidate at the University of Sheffield and Mark Bennett is a Ph.D. Candidate at the University of Liverpool. They kindly wrote a report on the inaugural Northern Public Law Forum, which was published via the UK Constitutional Law Blog.

The Northern Public Law Forum is an annual seminar series that will rotate around law schools in the north of England. The inaugural seminar was recently held at the University of Sheffield, with Professor Carol Harlow (LSE) and Professor Richard Rawlings (UCL) as the keynote speakers.

Harlow and Rawlings presented papers on the topics of the implications of digitalisation on administrative law and justice and Brexit and the territorial constitution respectively. This post briefly summarises some of key points made by the inaugural speakers and discussions that followed. With the next seminar set to be hosted by the University of Liverpool in 2019, this post also serves to symbolise the passing of the torch from Sheffield to Liverpool.

The Implications of Digitalisation on Administrative Law and Justice

(Panel: Professor Carol Harlow, London School of Economics; Professor Robert Thomas, University of Manchester; Dr Richard Kirkham (Chair), University of Sheffield)

Carol Harlow sought to promote discussion about the implications of digitalisation in public law. Her paper presented an overview of where digitalisation is occurring and the issues it raises, both for public lawyers and the polity as a whole. The first issue was the role of automated decision-making, in which routine cases are handled without human involvement. This raises concerns about the replacement of administrative discretion with interpretative discretion. The Australian Administrative Review Council published guidelines which describe automation as a ‘tool to guide officers.’ Harlow highlighted how, by contrast, UK Government seems to view automation more as a cost-saving tool.

The second issue was the Government and Parliament’s attitude towards digitalisation; both are keen to explore its potential. Digital affairs now form part of the Department for Digital, Culture, Media & Sport’s portfolio. The Science and Technology Committee has reported on robotics and artificial intelligence and the Speaker of the House of Commons has set up a Commission on Digital Democracy with the goal of enhancing Parliament’s work and democratic participation. However, some contemporary legislative practices on digitalisation are problematic. Delegation and Henry VIII clauses are common features of bills relating to technology. Some parliamentarians have complained that bills are difficult to read and there is increasing structural fragmentation, e.g. data protection is spread across multiple bills. This is concerning as incomprehensible legislation will limit the ordinary person’s ability to know and enforce their rights.

The risk of an accountability gap between generalists and experts is another key issue. Although the gap may be reduced through increased transparency, there are dangers of this form of accountability being too reliant on experts. Alternatively, there could be a legal right to an explanation from the programmer about how their automated algorithm reached its decision. Similarly, an independent figure, such as the Information Commissioner, could also be empowered to help secure such explanations. Another consequence of digitalisation is that complaints are easier to make, but it may overload the complaints systems and ombudsmen. Therefore, it is imperative that those who are appointed to manage these systems understand the digitalised decision-making process. With digitalisation occurring in so many areas of public and administrative law, Harlow’s message was that it warrants greater consideration by public lawyers.

In response, Professor Robert Thomas focused on ways in which public and administrative lawyers could respond to these challenges. There are practical questions about ensuring that public law values (such as accountability and transparency) are protected when digital procedures are used. He offered a typology to delineate between forms of digitalisation. To begin with there is digitalisation which aims to replace existing paper based process, such as online form filling or digital books. There are also digital methods of improving accountability, such as records made accessible online, customer choice and online complaints. There are also more transformative forms of digitalisation which substantively changes both the ways in which citizens interact with the state and the application of rules and decision outcomes. Similarly, there is a spectrum of automated decisions, from those that allow for exercising human discretion to compete automation. The public already accepts some forms of automated decision-making, such as speed cameras. Digitalisation will solve some problems, but it will also make new ones. There will be both intended and un-intended consequences; it is inherent in computer programming that the code as it is inputted might have consequences in the future.

Thomas highlighted that austerity is one of the key drivers of digitalisation and this is unlikely to change in the short term. The Ministry of Justice’s budget has been cut significantly in recent years and digitalised court reform is considered to be the only option for ensuring a viable justice system. There are plans to move Social Security Tribunals to a continuous online hearings model, an online inquisitorial process rather than a face-to-face one. A similar model has been in used for several years for the Parking Tribunal. Nevertheless, the Parking Tribunal only handles relatively low-stakes decisions. How can this model be transferred to a process as large as the Social Security jurisdiction? The answers will depend on our ability to determine what types of decisions can and should be automated. Thomas suggested more empirical research will be needed in this area.

Brexit and the Territorial Constitution: Devolution, Reregulation and Inter-Governmental Relations

‘Brexit and the Territorial Constitution’ was published by The Constitution Society in October 2017. This was, Rawlings acknowledged, a paper with an “agenda”, a “committed piece of public lawyering” geared towards influencing the Government’s legislative policy. At the time the paper was written, very little was coming out of Northern Ireland about ‘common frameworks’. The focus of Rawlings’s paper was thus to reflect specifically on the intergovernmental relations between England, Scotland, and Wales and, in more general terms, on “the process of constitution-building” in the context of Brexit.

The UK faces inherent difficulties in replacing that which, through membership of the EU, has consistently been provided for: a framework for a “UK single market” which has ensured “free and frictionless trade inside an otherwise increasingly differentiated polity”. Rawlings refers to this as “the reregulatory conundrum”. The central question is: how can we substitute that to maintain the proper functioning of the internal market whilst at the same time giving proper respect to representative government systems in Scotland, Wales and Northern Ireland which are themselves grounded in popular sovereignty through referendums?

Seizing upon the metaphor of the “hollowing out” of the state that was very fashionable in the 1980s and 1990s – a notable aspect of which was the characterisation of competences as travelling upwards to the EU – Brexit ought, on these terms, to be conceived as involving a reverse dynamic. That is, the repatriation of competences, or, the in-filling state capacity. No matter how the discussion of Clause 11 of the EU Withdrawal Bill proceeds, Rawlings insisted that it is “the ‘Centre’ which stands to gain the most from the Brexit process”. In this context, the “double-hatted nature of UK Government” – the extent to which UK departments are “essentially English departments” – generates the conditions, particularly from a devolved perspective, for potential conflicts of interests. For instance, Rawlings highlighted how the UK Government’s approach has principally been rooted in an appeal to (the ‘return’ of) the doctrine of parliamentary sovereignty, embedded in which is the notion that Westminster occupies a central role in determining how powers will be “parceled out” to the devolved administrations after Brexit. That this approach has been met with resistance by the Scottish and Welsh governments is evocative of the competing narratives of the territorial constitution which continue to bubble under the surface of the very particular dispute regarding the EU Withdrawal Bill.

Recent developments such as the “interesting political dynamic” of the Scottish and Welsh administrations’ relative unity (“moving together in the light of Brexit”), and the UK Government’s concession that Clause 11 “cuts against pre-existing devolution settlements”, appear to support the thread of Rawlings’s analysis, throughout which concerns about the destabilising potential of Brexit in the domestic sphere are evidenced. The constitutional significance of these developments rests on their potential to generate a shift in the balance of power in the territorial constitution for years to come: from a “binary allocation of powers” (that is, either “non-reserved or reserved”) to “ideas of shared governance”.

The note on which Rawlings concluded – the matter of devolution in the English regions – was apposite in the setting of the Northern Public Law Forum. Remarking that the voice of the North was “heard very strongly” in the Brexit referendum, Rawlings prompted introspection amongst colleagues at the inaugural seminar, challenging the Forum to consider its role: “Is there a role for this forum of northern public lawyers to be saying some things about devolution to the North of England in the context of Brexit?”

In response to Rawlings’s paper, Professor Alison Young emphasised that there are “huge problems with the constitution changing without us realising what is going on”, which emerge particularly in the context of “reregulation”. “Brexit,” it was suggested, “could cause deep divisions and fractures in the Union”. The embrace of a “top-down” interpretation of parliamentary sovereignty is at once a cause and a symptom of these issues. Possible solutions lie in the emphasis on collaboration, which on the one hand demands a re-emphasis of parliamentary sovereignty as “bottom-up”, and on the other hand perhaps encourages us to revisit EU practice, to learn from how the EU has “stretched itself in these contexts.” Within the EU there is “lots of co-ordination between different administrative bodies”, which is “not always ‘top-down’”. Moving towards a “system of government which is more collaborative post-Brexit” demands consideration of key problems: the constitutional structures of the UK and the issue of sovereignty; “that England” and the “cultural imbalance” stemming from a focus on predominantly English issues.